J.Ashok Shivaram v. Fertilizers & Chemicals Travancore Ltd (FACT)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937** ## **WP(C).No. 11972 of 2015 (V)** **----------------------------** **PETITIONER:** **------------------** **J.ASHOK SHIVARAM, AGED 60 YEARS B.NO.7761, DEPUTY CHIEF MANAGER (SALES) (RETIRED) FERTILIZERS & CHEMICALS TRAVANCORE LTD. (FACT) RESIDING AT.PT.NO.39, DEFENCE COLONY, LAXMI NAGER GANESHPUR, BELGAUM, KARNATAKA STATE PIN-591 108.** **BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.JIKKU SEBAN GEORGE** **RESPONDENT:** **--------------------** **FERTILIZERS & CHEMICALS TRAVANCORE LTD (FACT) UDYOGAMANDAL - 683 501 REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.** **R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.P.GOPINATH R1 BY ADV. SRI.P.BENNY THOMAS R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11972 of 2015 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **-----------------------------------** **EXT.P1 - COPY OF THE ORDER NO.GM(M)MK-29-101 DATED 25.09.2014 ALONG WITH ENQUIRY REPORT OF THE DISCIPLINARY AUTHORITY. EXT.P2 - COPY OF THE REPRESENTATION DATED 29-01-2015 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P3 - COPY OF THE LETTER DATED 07.02.2015 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P4 - COPY OF THE STATEMENT/SETTLEMENT SHOWING THE DETAILS OF AMOUNTS DUE TO THE PETITONER. EXT.P5 - COPY OF THE JUDGMENT DATED 10.01.2014 IN W.P(C) NO.28105/2013 OFTHIS COURT. EXT.P6 - COPY OF THE ORDER NO.14/02/04 DATED 26.02.2004 OF THE CENTRAL VIGILANCE COMMISSION, GOVERNMENT OF INDIA. EXT.P7 - COPY OF THE NOTE OF CHIEF VIGILANCE OFFICER VIDE NO.CVO-CO-65 DATED 26.08.2009. EXT.P8 - COPY OF THE ORDER NO.51/9/03 DATED 15.09.2013 OF THE CENTRAL VIGILANCE COMMISSION, GOVERNMENT OF INDIA. EXT.P9 - COPY OF THE JUDGMENT DATED 10.01.2014 IN WP(C) NO.28105 OF 2013 OF THIS COURT. RESPONDENT'S EXHIBITS:--------------------------------------EXT.R1(A) - COPY OF THE CDA RULES APPLICABLE TO THE MANAGERIAL PERSONNEL OF THE COMPANY. EXT.R1(B) - COPY OF THE RELEVANT EXTRACT OF THE PROVISIONS RELATING THE RULE OF CVO UNDER PUBLIC SECTOR ENTERPRISES.** **//TRUE COPY//** **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.11972 of 2015-V ---------------------------------Dated this the 28[th] day of January, 2016** ## **JUDGMENT** The petitioner retired from the services of the respondent on 30.09.2012. Just prior to his retirement, a memo of charges dated 24.09.2012 was issued to him. The allegation was with respect to certain Officers of the respondent Company having pooled money to be paid to the General Manager, so as to transfer an Officer, who was loyal to the respondent Company. The petitioner was alleged to have also contributed amounts to that end. 2. Be that as it may, the enquiry was _W.P.(C) No.11972 of 2015-V_ **2** proceeded with even after retirement and as per the Enquiry Report dated 16.06.2014, enclosed along with Ext.P1, the petitioner was exonerated. The Disciplinary Authority by Ext.P1 order dated 25.09.2014, concurred with the findings of the Enquiry Officer. The petitioner by the above writ petition, contends that even now the petitioner has not been paid the retirement benefits. Fifty percent of the amounts due was paid as per order dated 10.04.2015. The petitioner seeks the disbursal of the entire retirement benefits with interest. 3. The learned Standing Counsel appearing for the respondent contends that even after the order of the Disciplinary Authority, Ext.R1(a) provided for a review by the Board and there was a requirement of the Vigilance Officer of _W.P.(C) No.11972 of 2015-V_ **3** the Company giving a Clearance Certificate. In case of difference of opinion between the Vigilance Officer and the Chief Executive, then the Board of the Public Sector undertaking has to consider the issue. It is submitted that the Vigilance Officer of the Company, who had initiated the complaint against the General Manager and the Officers, who were alleged to have collected money, had objected to the order of exoneration passed against the petitioner. In such circumstance, it is the contention that the Board has been seized of the matter and that the same would be considered by the Board. 4. The writ petition itself was filed on 08.04.2015 and the respondent Company had been continuously seeking adjournment, for the Board to consider the issue. The petitioner, a _W.P.(C) No.11972 of 2015-V_ **4** retired employee, who was exonerated of all the charges, has been before this Court for the last eight months, claiming his entire retirement benefits. In such circumstance, this Court is not inclined to grant further time for the Board to consider the issue. 5. What assumes significance is that, the petitioner, who was issued with the memo of charges, just prior to the retirement, was proceeded with in an enquiry and he was found to be not guilty of the charges leveled against him. The Disciplinary Authority also concurred with the findings. The disciplinary proceedings are carried out in the respondent company in accordance with The FACT Employee's (Conduct, Discipline and Appeal) Rules, 1977 {Ext.R1(a)} and for effective scrutiny of vigilance cases, _W.P.(C) No.11972 of 2015-V_ **5** _interalia_ with respect to the public sector undertakings, the Central Vigilance Commission is constituted and as per the Central Vigilance Commission Manual there is a Chief Vigilance Officer {CVO, for brevity} for each of such undertakings. 6. The petitioner has produced Ext.P6 along with the Reply Affidavit, which is a communication of the Central Vigilance Commission, which puts into proper perspective the role of the Commission. It has been specifically stated therein that the role of the Commission is merely advisory and it does not at all regulate the Disciplinary Authority's decision. A difference of opinion with the Vigilance Officer could occur when a delinquent employee is found guilty of the _W.P.(C) No.11972 of 2015-V_ **6** charges leveled and there is the question of imposition of punishment or when he is exonerated of the charges. The same is also evident from the communication at Ext.P8, again by the Central Vigilance Commission, which indicates that the Disciplinary Authority is required to apply its own mind to the facts and circumstances of the case and has to come to its own conclusions and the role of the Central Vigilance Commission is merely consultative in nature. The Commission or the CVO does not hence, act as an appellate or revisionary authority. 7. In such circumstance, this Court cannot sustain the contention of the respondent Company that the difference of opinion said to have arisen for reason of the Vigilance Officer _W.P.(C) No.11972 of 2015-V_ **7** having disagreed with the findings of the Disciplinary Authority, can at all regulate the payment of the retirement benefits to the petitioner. 8. The Inquiry Report had exonerated the charge-sheeted employee and the CVO had difference of opinion with the same which was communicated to the Disciplinary Authority, which was prior to the order of the Disciplinary Authority. The Disciplinary Authority concurred with findings in the Inquiry. The Board as per Ext.R1(a) is the reviewing authority and the power of review had to be exercised within the stipulated time. The limitation for taking up the review,as is indicated at Clause 36 of Exts.R1(a) & (b), is a period of six months. _W.P.(C) No.11972 of 2015-V_ **8** 9. The respondent Company having no contention that the Board has taken a decision or initiated any action for such review, there can be no review at this stage. There shall be a direction that the petitioner shall be paid the entire retirement benefits. The petitioner shall also be entitled to interest at 7% from 30.10.2012 (one month after the date of his retirement) till payment of the 50% as per the direction of this Court and the date of the balance payment made as per the directions in this judgment. The payment shall be made within a period of three months from the date of receipt of the certified copy of this judgment. The interest is levied on the strength of the judgment of the Hon'ble Supreme Court in **S.K. Dua v. State of Haryana and Another [AIR 2008** _W.P.(C) No.11972 of 2015-V_ **9** **SC 1077]** . The writ petition is disposed of. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/28/01/16